CEDH · CASELAW;CLIN;ENG — 13 octobre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 123 October 2009 De Schepper v. Belgium - 27428/07 Judgment 13.10.2009 [Section II] Article 5 Article 5-1 Lawful arrest or detention Preventive detention of paedophile on social-protection grounds: no violation   Facts – After serving eight prison sentences for acts of paedophilia, the applicant was sentenced again in 2001 by a criminal court to six years’ imprisonment for rape and indecent assault of minors. In accordance with the Law on social protection against abnormal behaviour, delinquency and certain sexual offences (Social Protection Act), that judgment also placed the applicant “at the Government’s disposal” for a period of ten years after serving his sentence. This meant that the Minister of Justice could either release him under certain conditions or order his preventive detention. From 2002 onwards the authorities attempted to secure his admission to a psychiatric institution where he could be treated. Preliminary therapy was organised in the prison to prepare him for admission. However, all the institutions approached responded that they could not admit him as his dangerousness had not diminished. In 2006 the Minister of Justice ordered the applicant’s preventive detention after the expiry of his prison sentence. His appeals against that decision were dismissed. Law – Article 5 § 1: The fact that a person could be placed at the Government’s disposal did not appear arbitrary as it was part of the sentence set by the Criminal Court at the time of conviction, in order to protect society against certain categories of dangerous criminals. The Minister of Justice, in deciding on the preventive detention of a person placed at the Government’s disposal, was simply determining the conditions of application of a sentence. In the present case, the Minister had complied with the Social Protection Act. His decision had contained precise reasoning, endorsing a report by a neuropsychiatrist, which was itself based on an opinion by the prison psychologist. The lack of long-term specialist in-patient treatment was not the only reason for his decision. But it was a decisive factor, because, as the Minister expressly pointed out, a course of treatment specially adapted to the applicant’s situation could have reduced his “dangerousness”. The Court examined the authorities’ efforts to secure him such treatment. As specialised public establishments could not admit him, the prison authorities had made attempts, from 2002 onwards, to place him in a psychiatric institution, but had been unsuccessful. Thus, before deciding on his preventive detention, the authorities had introduced in the prison, on the recommendation of specialists, a preliminary course of therapy that was a prerequisite for admission to a specialised institution. However, such admission had been impossible as the applicant’s dangerousness had not diminished. The Belgian authorities had not therefore failed in their obligation to seek to provide the applicant with treatment adapted to his condition that might help him recover his freedom. The authorities’ lack of success to date could be explained mainly by the evolution in the applicant’s condition and the fact that it was therapeutically impossible for the institutions approached to treat him at that stage. However, this finding did not release the Government from their obligation to take all appropriate initiatives in order to find, in the near future, a public or private institution that would be able to treat such a case. In this connection the Court noted that under the Social Protection Act a detainee placed at the Government’s disposal, after one year of preventive detention imposed by a lawful decision, was entitled to apply to the Minister of Justice for release. The application could be lodged again at yearly intervals. Conclusion : no violation (unanimously). (See Weeks v.   the United Kingdom , no.   9787/82, 2   March 1987; Stafford v.   the United Kingdom [GC], no.   46295/99, 28   May 2002, Information Note no.   42; and Morsink v.   the Netherlands , no.   48865/99, 11   May 2004, Information Note no.   64)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes